Text-gate: elected officials
sending secret messages to each other
during public meetings may be illegal
Paula Porten &
Tom Duggan
Last week, Lowell City Councilor
and former Lowell Mayor Rita Mercier
filed a motion requesting that the
council ban the use of cell phones and
other electronic devices during council
meetings. The motion was filed, Mercier
says, because councilors like Kevin
Broderick were seen using a cell phone to
send and receive text messages during
council meetings. The council’s
rules subcommittee is expected to take up
this issue but insiders say there is not
enough support among councilors to ban
cell phones and text messaging while
public meetings are being
conducted.
The Town of North Andover has no formal
policy regarding cell phone use or
texting, however, according to School
Committeeman Dr. Chuck Ormsby, “in-formally,
cell phones are discouraged and turned
off. I’ve never been aware of anyone
using cell phone for voice or text
messaging during a meeting. I wouldn’t
appreciate it if anyone did, especially
to another committee member while pubic
discussion is taking place,” Ormsby
said.
In Methuen, City Councilor president Phil
Lahey said he was “shocked” at
what was going on in Lowell. “That
is a total joke!” he exclaimed.
“In Methuen, it’s called common
sense and common courtesy. We all shut
off our cell phones at the beginning of
the meeting, except for maybe, Councilor
Giardianno. We are doing the people’s
business in public and all discussions
should be in public. There is no excuse
for sending secret messages back and
forth during a meeting,” Lahey
concluded.
In Lawrence, council president Patrick
Blanchette initially posted a sign on the
door of the city council chambers
prohibiting use of cell phones during
council meetings. Within a few weeks of
posting the sign, however, Blanchette was
seen receiving messages on his phone and
when called on it by the Valley Patriot
changed the informal cell phone policy
from prohibiting their use to placing
ringers on vibrate during the meetings.
The council president in Lawrence has
discretion over the rules of decorum when
presiding over council meetings and does
not need an official rule to be passed.
In Massachusetts, communication among
elected officials is regulated by the
Open Meeting Law, “regardless of new
technologies.”
According to the Essex County District
Attorney’s Office, which regulates
and enforces the Open Meeting Law in
Essex County:
“It is a violation to e-mail
to a quorum messages that can be
considered invitations to reply in any
medium, and would amount to deliberation
on business that must occur only at
proper meetings. It is not a violation to
use e-mail to distribute materials,
correspondence, agendas, or reports so
that the committee members can prepare
individually for upcoming meetings.”
And on the Middlesex County District
Attorney’s website, which regulates
and enforces the Open Meeting Law in
Lowell, it states with regard to e-mail
and telephone use, “Discussions by
telephone among a quorum of members of a
governmental body on an issue of public
business within the jurisdiction of the
body are a violation of the Law.”
No legislation or regulations exist
however, specifically prohibiting emails
or text messages among one or two members
of a governmental board. However,
according to the public record laws,
written notes passed among government
officials during a public meeting are
subject to the Freedom of Information
laws and requests for such communications
must be turned over to the public.
According to the Middlesex DA’s
website: “members of governmental
bodies should also be cautious about
communicating via email one on one. This
is because private, serial conversations
may reach a quorum of members without the
knowledge of all participants.”
Former Georgetown Selectman Lawrence
“Lonnie” Brennan said he sees
no difference between passing notes to
each other during a public meeting and
sending a text message. “I see
absolutely no difference between sending
a secret communication such as a written
note to a fellow selectman during a
meeting and sending a text message to
that same selectman. It is secret
communication during what is supposed to
be a public discussion and if it’s
not illegal it should be,” Brennan
said. Brennan is a candidate or State
Representative and said that such secret
communications open up cities and towns
to “all kinds of collusion and deal
making.”
Meanwhile, House Bill 3217 introduced by
State Representative Stephen Kulik
(D-Worthington) would make further
changes to the Open Meeting Law regarding
penalties for violations. A public
hearing on the bill was held June 19th.
This issue of public officials text
messaging during public meetings is a
relatively new issue being taken up all
over the country as to how it falls
within the open meeting laws.
According to Rapidcityjournal.com, in
Rapid City, South Dakota the City
Attorney, Jason Green, recommended that
the Rapid City Council limit or prohibit
electronic communication during public
meetings. Several council members raised
concerns recently about other members
using instant messaging during meetings
to ask people to vote a certain way or
ask for a second on motions. Some also
have raised concerns about group e-mails
sent to the council that could, in
essence, allow policy to be set online.
As stated on Rapidcityjournal.com, Green
said, “I believe that’s the
safest course, and conforms best with the
notion of conducting the public’s
business in public. This is really an
open-meetings question.”
Alderman Deb Hadcock, also of Rapid City,
said that asking individuals informally
to stop e-mailing and instant messaging
hasn’t worked. Now, several council
members believe it’s time for an
official policy. “It hasn’t
just been a concern of a couple, it’s
been a concern of many,” she said.
“We want to be fair to the public
and to other members of the council.”
Hadcock said instant messaging is “problematic”
because there is no way to track them.
But if people want to instant message
during meetings, the text should be
posted on the screen so the audience and
other members can view them.
And in Santa Rosa, California, the City
Council last month adopted a ban on
sending, receiving and reading
electronically produced messages during
their weekly meetings.
The new policy is intended to assure the
public that officials aren’t being
secretly lobbied on critical issues via
text messages and to guarantee to those
who speak at council meetings that the
council has their undivided attention
according to pressdemocrat.com. So now
council members have to put down their
BlackBerries and cell phones during the
course of the meeting, said City Attorney
Brien Farrell. Should any member
violate the policy, Farrell said the
e-mails or text messages likely would
then have to be shared with the public in
conformance with the state’s Brown
Act, an open-meeting law that protects
against government secrecy.
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(C) copyright, Valley Patriot, Inc., 2008
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